Tai Weng Construction & Engineering Sdn. Bhd. v Posim Marketing Sdn. Bhd. (WA-12ANCC-42-06/2023)

TAI WENG CONSTRUCTION & ENGINEERING SDN BHD [COMPANY NO.: 201501043544 (1168865-X)]

WONG YEW WOH [IC NO.: 740502-14-5933] ...APPELLANTS AND POSIM MARKETING SDN BHD [COMPANY NO.: 198501004385/136824-M] ...RESPONDENT IN THE SESSIONS COURT AT KUALA LUMPUR (CIVIL DIVISION) SUIT NO: WA-A52NCC-510-02/2023 BETWEEN POSIM MARKETING SDN BHD [COMPANY NO.: 198501004385/136824-M] …PLAINTIFF

TAI WENG CONSTRUCTION & ENGINEERING SDN BHD [COMPANY NO.: 201501043544 (1168865-X)]

WONG YEW WOH [IC NO.: 740502-14-5933] ...DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This appeal emanates from the decision of the Sessions Court granting Summary Judgment under O.14 of the Rules of Court 2012 (“the ROC”). The cause of action was based on failure to pay for goods sold and delivered. I affirmed the decision of the Learned Sessions Court Judge (“the LSCJ”). I found that the LSCJ rightly held that no triable issues were raised that merits a full trial. Brief background [2] The Respondent (the Plaintiff at the Sessions Court) (was in the business of supplying building materials. On the request of the 1st Appellant (the 1st Defendant at the Sessions Court), a credit facility was granted (“the Credit Facility”). The 2nd Appellant (the 2nd Defendant at the Sessions Court) was the signatory to a Continuing Guarantee and Indemnity effectively making him guarantor under the Credit Facility. [3] For the purpose of this Grounds of Judgment, parties will be referred to as they were in the Sessions Court. [4] It is not disputed that the building materials were supplied and delivered by the Plaintiff. The Plaintiff therefore claimed against the Defendants jointly and severally for the sum of RM185,457.09 as at 31.1.2023 which consists of the outstanding principal sum of RM125,377.88 for goods sold and delivered and the agreed late payment interest of RM60,079.21. [5] The Plaintiff’s solicitors issued letters of demand dated 16.1.2023 to the Defendants demanding the outstanding sum as at 31.12.2022 due and owing to the Plaintiff. [6] In response, the Defendants wrote to the Plaintiff on 1.2.2023 expressing regret over the delay in making the sums demanded. The Defendants then proposed that the sums due are paid by 12 equal installments of RM15,292.00. There was no dispute as to the principal sum and the late payment interest claimed by the Plaintiff. The issue [7] Whether issues raised by the Defendants i.e. (i) there is no proof of receipt of the invoices and debit notes by the 1st Defendant; and (ii) there is no statement of account produced by the Plaintiff were triable issues. Finding [8] Both issues will be dealt with cumulatively. [9] The issues raised must be considered on the undisputed fact that a letter was sent by the Defendants admitting to the sums claimed. There were no disputes raised by the Defendants when they responded to the demand made by the Plaintiff. [10] The debit notes were sent to the 1st Defendant at its business address which is not disputed, namely “Unit 1011, Level 10, Block B, Phileo Damansara II, No. 15, Jalan 16/11, 46350 Petaling Jaya, Selangor”. [11] This was the same address in the Letter of Demand sent to the 1st Defendant. While the Defendants chose to respond to the Letter of Demand, they now claim that there were no proof of receipt of the invoices and debit notes. [12] I find the arguments to be untenable and reeks a desperate attempt to dispute the claim. It must be also remembered that the goods were delivered and were eventually used by the Defendants. To accept the issues raised is akin to inviting this Court to allow a sham defence to be entertained. This would only waste judicial time if it goes for full trial. [13] At the risk of repetition, in view of the clear admission of liability by the 1st Defendant via its letter dated 1.2.2023, the arguments of the Defendants are clear afterthoughts. The Defendants are estopped from disputing the claim. [14] The Federal Court in Boustead Trading (1985) Sdn Bhd vs Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331, on a similar point held “… It was entitled to assume that the invoices were good for payment because the appellant had done nothing to disabuse the respondent of the impression it had created in the latter’s mind that the invoices were good for payment. It would be most unjust for the appellant to now suggest that the respondent ought not to have paid on the disputed invoices. The appellant should therefore be estopped from asserting that nothing was due on these invoices.”. [15] For completeness, it is trite there is no legal requirement for the Plaintiff to produce any statement of account. The Plaintiff’s claim is sufficiently proved by the invoices, the delivery orders and the debit notes. Furthermore, the 1st Defendant has acknowledged receipt of the goods on the copies of the delivery orders. Conclusion [16] In light of the factual circumstances of this case, there is no doubt that the Plaintiff was entitled to judgment as found by the LSCJ. This is a fit and proper case for the claim to be dealt with summarily as provided under the ROC. [17] The appeal is therefore dismissed with costs. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 3rd April 2024 Counsel Siti Zubaidah Jemadi for the Appellants Messrs. Gary Wong & Co, Kuala Lumpur Seok Mae Jane for the Respondent Messrs. Cheong Yee & Partners, Selangor